Citation Nr: 0922249
Decision Date: 06/12/09 Archive Date: 06/17/09
DOCKET NO. 95-19 765 ) DATE
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On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in
New York, New York
THE ISSUE
Entitlement to service connection for the cause of the
Veteran's death.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
Harold A. Beach, Counsel
INTRODUCTION
The Veteran, who died in July 1976, served on active duty
from December 1963 to May 1972. He also had subsequent
service in the Air National Guard. The appellant is the
Veteran's surviving spouse.
In February 1979, the RO denied the appellant's claim of
entitlement to service connection for the cause of the
Veteran's death. The RO found no nexus between any of the
Veteran's service-connected disabilities and the cause of his
death. Rather, the RO found that the fatal condition had
been shown, initially, on the death certificate. The
appellant was notified of that decision, as well as her
appellate rights; however, a notice of disagreement was not
received with which to initiate an appeal. Therefore, that
decision is final. 38 U.S.C.A. § 7105 (West 2002).
In March 2003, the Board found that the appellant had
submitted new and material evidence to reopen her claim of
entitlement to service connection for the cause of he
Veteran's death.
In November 2003 and June 2004, the Board remanded the case
for further development. Following the requested
development, the VA Appeals Management Center in Washington,
D.C. confirmed and continued the denial of entitlement to
service connection for dependency and indemnity compensation.
Thereafter, the case was returned to the Board for further
appellate action.
FINDINGS OF FACT
1. The Veteran died in July 1976 due to aspiration pneumonia
due to a drug overdose (Darvon compound).
2. The Veteran's death was ruled a suicide.
3. The Veteran first demonstrated a chronic anxiety disorder
during service, which ultimately led to his suicide.
CONCLUSION OF LAW
A disability incurred in service caused or contributed
substantially or materially to the Veteran's death. 38
U.S.C.A. §§ 1310, 5103, 5103A, 5107(b) (West 2002 & Supp.
2008); 38 C.F.R. §§ 3.102, 3.159, 3.302, 3.312 (2008).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
VA's Duty to Notify and Assist
Prior to consideration of the merits of the appeal, the Board
must determine whether VA has met its statutory duty to
assist the appellant in the development of her claim of
entitlement to dependency and indemnity compensation.
38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. After
reviewing the record, the Board finds that VA has met that
duty.
Analysis
The appellant contends that the Veteran first demonstrated a
psychiatric disability in service which led him to commit
suicide four years after his discharge from service.
Therefore, she argues that service connection is warranted
for the cause of his death. Accordingly, she maintains that
she is entitled to dependency and indemnity compensation.
After a careful review of the record and consideration of the
applicable law, the Board agrees. Accordingly, the appeal
will be granted.
Dependency and indemnity compensation may be awarded to a
veteran's surviving spouse for death resulting from a
service-connected or compensable disability. 38 U.S.C.A. §
1310; 38 C.F.R. § 3.312. In order to establish service
connection for dependency and indemnity compensation, the
evidence must show that a disability incurred in or
aggravated by service was either the principal cause of death
or a contributory cause of death. Therefore, service
connection for the cause of a veteran's death may be
demonstrated by showing that the Veteran's death was, in
fact, caused by a disability for which service connection had
been established at the time of death or for which service
connection should have been established.
Service connection means that the facts, shown by the
evidence, establish that a particular injury or disease
resulting in disability, not a result of the Veteran's own
willful misconduct, was incurred in the line of duty in the
active military service or, if pre-existing such service, was
aggravated during service. 38 U.S.C.A. §§ 1110, 1131; 38
C.F.R. §§ 3.301, 3.303(a). Generally, the evidence must show
(1) the existence of a current disability; (2) the existence
of the disease or injury in service, and; (3) a relationship
or nexus between the current disability and any injury or
disease during service. See Cuevas v. Principi, 3 Vet.
App. 542 (1992).
The Veteran's death certificate shows that he died in July
1976 as a result of aspiration pneumonia due to a drug
overdose (Darvon compound). Although ruled a suicide,
suicide does not, per se, constitute willful misconduct which
would preclude service connection for the cause of death.
Rather, the act of suicide itself is considered to be
evidence of mental unsoundness. 38 C.F.R. § 3.302(b)(2).
Entitlement to service connection may be established for a
disease precipitating the mental unsoundness. 38 C.F.R.
§ 3.302(a)(3). In all instances, any reasonable doubt is
resolved favorably to support a finding of service
connection. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102,
3.302(c)(2). Thus, in order for the appellant to prevail,
the evidence must establish that the Veteran's suicide was
related to mental unsoundness which had been incurred during
the Veteran's military service.
The report of the Veteran's December 1963 service entrance
examination is negative for any complaints or clinical
findings of psychiatric disability. However, on many
occasions throughout service, the Veteran was treated for
complaints of abdominal pain, cramps, and nausea. Although
the diagnoses included gastroenteritis and viral syndrome,
multiple workups were negative, and no definitive organic
cause was found for the Veteran's complaints.
On several occasions in service, the Veteran was, reportedly,
having family problems, and he was treated for various
psychiatric symptoms. For example, in February and March
1970, he complained of difficulty sleeping, and it was noted
that he was separated, pending divorce. The impression was
very early depression due to an adult situational reaction.
In December 1970, he was diagnosed with an anxiety reaction.
In March 1972, the Veteran reported increased family and job
stress, and the diagnosis was psychogenic gastrointestinal
reaction due to situational anxiety. In May 1972, the
Veteran was granted a hardship discharge from the active
service due to illnesses of both of his parents and their
inability to work. Despite the Veteran's problems in
service, there were no complaints or clinical findings of
psychiatric disability on the report of his May 1972 service
separation examination. A VA examination found that the
Veteran's service connected disorders did not cause or
contribute to his death. Nevertheless, the Veteran's claims
file was reviewed by a VA psychologist in April 2007, to
determine whether the Veteran's suicide was the result of a
psychiatric disability in service.
After reviewing the record, the examiner concluded that it
was as likely as not that the Veteran developed some sort of
anxiety disorder during service. While the examiner was
unable to specify the exact nature, chronicity, or duration
of that disorder, the evidence shows that in and after
service, the Veteran's anxiety generally became manifest in
response to various family problems. Indeed, a July 1976
post mortem report noted that on the night he committed
suicide, the Veteran reported that he had been despondent due
to unspecified family difficulties. Such a scenario suggests
that the Veteran's developed a chronic anxiety disorder in
service and that mental unsoundness associated with anxiety
led to his suicide several years later. At the very least,
there is an approximate balance of evidence both for and
against the appellant's claim that the Veteran's suicide was
precipitated by his psychiatric problems which had their
onset in service. Under such circumstances, all reasonable
doubt is resolved in favor of the appellant. 38 U.S.C.A.
§ 5107(b) ; 38 C.F.R. § 3.102, 3.302. Accordingly, service
connection for the cause of the Veteran's death is warranted.
ORDER
Entitlement to service connection for the cause of the
Veteran's death is granted.
____________________________________________
DEREK R. BROWN
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs